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Tuesday, September 28, 2021

Does Scarlett Johansson have an argument in her lawsuit against Disney?

Johansson claimed that Walt Disney breached its contract last month when it released the movie bearing the character’s name in cinemas and on its Disney+ on-demand service simultaneously. Johansson argues that her compensation depends in large part on the film’s performance in cinemas and that its access to homes limits her desired earnings.

Disney will likely lose its battle with Scarlett Johansson in the court of public opinion, but the legal question is significant and has implications for dealings beyond Marvel Cinematic Universe and the actress who played Black Widow for more than a decade.

Fans have been confused about the lawsuit, but its core is constantly emerging, as compensation is often contingent on a future event that compels it, often called a “trigger,” such as achieving a sales target, closing a deal, or selling a certain number of books. Is the party liable to pay obligated to allow this event to occur?

loose standard
Critics of the “good faith” standard consider it too broad, giving judges almost absolute discretion in redrafting agreements. Even so, this standard is enforced and film studios have more than once been successful in breaching it. Apparently, California courts have allowed the lawsuits to continue even on what appeared to be bare ground, as in an allegation that the studio did not fairly evaluate films seeking a development deal.

Johansson’s lawsuit will serve to establish the background to the joint premise of the parties, as in the examples of the professional athlete and sales associate. In her lawsuit, Johansson alleges that the parties understood that the contractual promise that “Black Widow” would have a “widespread release”, meaning that it would “remain exclusively in cinemas for approximately 90 to 120 days”. The actress stresses that this is the norm in the industry and is what Marvel has been following. The studio would have violated the common premise by releasing “Black Widow” through “Disney+” while it was also made available in cinemas, according to this argument.

Actress Scarlett Johansson poses for photographers upon arrival at the ‘Avengers Endgame’ fan event in London, Wednesday, April 10, 2019. (Photo by Joel C Ryan/Invision/AP)
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